Melvina Indria and Another v. Torture Claims Appeal Board

HCAL 273/2026

[2026] HKCFI 4896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 273 OF 2026

BETWEEN

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the 2^nd applicant be amended to “Melvina Allea Syifa Almahyra (a minor) by Melvina Indria, her next friend”.

2.  The 1^st applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  The 1^st and 2^nd applicants’ application for leave to apply for judicial review be dismissed.

Observations for the applicants:

The Leave Application

1.By way of Form 86 dated and filed on 28 January 2026, the applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 15 December 2025 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000273_2026_files/the_Board's_Decision.pdf

2.The Board found that the applicants had failed to show that they were entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicants’ appeals/petitions against the decision of the Director of Immigration (“the Director”) dated 15 August 2025 and confirmed the same, which rejected the applicants’ non-refoulement claims.

Amendments

3.In Form 86, Melvina Allea Syifa Almahyra, who is the 1^st applicant’s daughter and a minor, is named the 2^nd applicant. As the 2^nd applicant is represented by the 1^st applicant as her next friend, her name is amended to “Melvina Allea Syifa Almahyra (a minor) by Melvina Indria, her next friend” on this court’s own motion.

The applicants’ case

4.It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

5.In sum, the applicants claimed for non-refoulement protection in Hong Kong because if refouled to Indonesia, the applicants feared being killed by the 1^st applicant’s parents, as the 1^st applicant failed to remit money to them after the termination of her employment contract in Hong Kong. The 1^st applicant’s parents also threatened to kill both the 1^st and 2^nd applicants if they returned to the country, as the 1^st applicant had given birth to the 2^nd applicant in Hong Kong out of wedlock, and thus had brought shame to the family.

Withdrawal of the Leave Application

6.Before the Leave Application was dealt with, the 1^st applicant filed an ex-parte application by way of her affirmation dated 12 August 2026 to cancel the Leave Application. However, the 1^st applicant did not indicate in her affirmation that it was safe for her to return or her problems in her home country had been resolved.

7.It is unclear from the 1^st applicant’s affirmation as to whether she was seeking to withdraw the Leave Application for herself, or for both herself and the 2^nd applicant.

8.There is no evidence to show that the 1^st applicant made the withdrawal application other than out of her own volition. With this withdrawal application, it is clear that at least the 1^st applicant no longer wishes to proceed with the Leave Application.

9.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

10.Thus, it is not right to leave the action at large. The 1^st applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the Leave Application.

Legal representation of the 2^nd applicant

11.The 2^nd applicant is a minor born in Hong Kong out of wedlock on 26 February 2025 and is represented by the 1^st applicant in the Leave Application.

12.There is no indication that the 1^st applicant had applied for legal aid for the 2^nd applicant.

13.However, as the 2^nd applicant was legally represented both before the Director and the Board, and no new evidence would be advanced in the Leave Application, this court considered that the lack of legal representation for the 2^nd applicant in the Leave Application was a mere irregularity and it would not prejudice the 2^nd applicant. Hence, this court waived the irregularity and proceeded to deal with the Leave Application.

Disposal on paper

14.The applicants did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

15.The applicants are required to identify clearly the grounds for their intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

16.The applicants did not advance any ground for their intended judicial review in their Form 86, nor in the 1^st applicant’s supporting affirmation dated 28 January 2026. In the said affirmation, the 1^st applicant only stated that she was not satisfied with the Board’s Decision, and she could not go back to her country at the moment because her life was not safe there.

Discussion

17.First of all, the applicants’ danger upon returning to their country had been duly assessed but rejected by the Board. If they intend to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

18.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

19.Thus, despite the fact that the applicants did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

20.In assessing the 1^st and 2^nd applicants’ appeals/petitions, the Board held an oral hearing on 13 November 2025. The applicants were present and were represented by duty lawyer assigned by the Duty Lawyer Service. Thus, the applicants were given the opportunity to present their cases to the Board through their legal representative.

21.As can be seen from the Board’s Decision, the Board had extensively analyzed every aspect of their claims and provided full and detailed reasoning in rejecting their claims for non-refoulement protection.

22.The Board was fully aware that the 2^nd applicant’s case required a separate assessment of the child-specific risks of harm or discrimination faced by her (see paragraphs 31 to 35 of the Board’s Decision), and dealt with such risks in paragraphs 43 to 45 of the Board’s Decision.

23.In gist, the Board found that children born out of wedlock could still register citizenship in Indonesia, the Indonesian government had provided means of protection to those children born out of legal wedlock from an Indonesian mother and would protect the right of citizen free from acts of discrimination. The Board also found that there was availability of government-run centres and NGOs for providing assistance to children in Indonesia, and the Board was unconvinced that the Indonesian government would be unwilling or unable to afford protection to the applicants, including the 2^nd applicant’s medical condition.

24.This court also notes that the 2^nd applicant’s father is an Indonesian and hence there would not be any issue of mixed-race discrimination.

25.The Board had laid out its assessment of the credibility of the applicants’ claims and its material finding of facts in relation to the applicants’ claims in paragraphs 38 to 48 of the Board’s Decision. It is therefore unnecessary for this court to repeat the same here.

26.In gist, in respect of the claimed threat from the 1^st applicant’s parents, the Board found no evidence to substantiate the 1^st applicant’s parents’ intention to seriously harm and/or kill the applicants. There was nothing significant indicating that the verbal threats or acts from the 1^st applicant’s parents were more than a gesture in possibly expressing their dissatisfaction and anger on the applicants, and pressing the applicants to give them money. The 1^st applicant’s parents had not done any other things to issue threats against the applicants apart from verbally threatening them through phone calls.

27.Thus, the Board considered that there was not a genuine risk that the applicants would be killed or harmed by the 1^st applicant’s parents.

28.In its assessment of state protection for the applicants, the Board addressed the 1^st applicant’s concern about whether the 2^nd applicant could be registered in Indonesia, as it was the applicants’ case that if the 2^nd applicant was not registered, she would lack access to basic services such as healthcare and education. The Board found from country of origin information (“COI”) that children born out of wedlock could still register citizenship in Indonesia and enjoy the welfare in the country. There was also COI showing that the Indonesian government had provided means of protection to those children born out of wedlock from an Indonesian mother, and to protect the right of citizen free from acts of discrimination.

29.Moreover, there were non-government organizations in Indonesia to help women and children in need. There were also objective indications that the Indonesian government strived hard to improve the healthcare system and provided adequate medical services to its citizens including children.

30.In addition, the Board was unconvinced that the Indonesian government would be unwilling or unable to afford protection to the applicants, including the 2^nd applicant’s medical condition, upon their return to Indonesia.

31.Having considered the COI and the totality of evidence given by the applicants, the Board was satisfied that in the future if the applicants so required, meaningful state protection would be available to them.

32.In terms of internal relocation, the Board also found that even if the applicants had shown that they would face a real risk of harm if refouled to Indonesia, the Board considered that there were alternative places of safety in Indonesia for the applicants where they could avoid the alleged risk of violence or threats from the 1^st applicant’s parents. The Board was unconvinced that it was unduly harsh for the applicants to relocate to other areas in Indonesia such as Jakarta and Surabaya.

33.Hence, the Board concluded that both the 1^st and 2^nd applicants were not entitled to non-refoulement protection under any of the applicable grounds.

34.The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicants’ appeals/petitions. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

35.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

36.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicants have failed to establish such a claim and hence leave must be refused.

Conclusion

37.For reasons aforesaid, the 1^st applicant’s application to withdraw the application for leave to apply for judicial review is refused, and the Leave Application in respect of both the 1^st and 2^nd applicants is dismissed.

Dated the 26^th day of August 2026

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence

Form CALL-1